Date of Filing             :    26 May, 2023.

Date of Judgement    :    24 April, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Mrs. Pranati Kundu and Mr. Agniv Nandi, hereinafter called the Complainants, filed a complaint under Section 35 of the Consumer Protection Act, 2019  (the Act), against (1) M/s. Shivam Enterprise and (2) Mr. Suman Das, proprietor of M/s. Shivam Enterprise, hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OPs arising out of non-refund of booking amount paid by the complainants intending to purchase a flat from the OPs.

            The material facts arising out of the statement of complaint petition and the annexed documents are, if brief, that the complainants had jointly booked one flat of area about 1000 sq. ft. including super built up area in the second floor in the proposed building to be constructed by the OPs at the premises situated at 19/1, Fakir Chand Ghosh Lane, P. S.–Bantra, Howrah–711 101, entrusting upon the Power of Attorney received by the OP-2 from the landowners and on the basis of an oral agreement between the OP-2 and themselves.  It was verbally decided that the total consideration for purchasing the said flat would be ₹23,00,000/-  at the rate of ₹2,300/- per sq. ft. Complainants stated that they had paid a total of ₹1,64,000/- on different dates starting from 09/10/2021 to 30/01/2022.  It was decided that the OPs would provide them the desired Agreement for Sale within three months from the first payment and depending on this assurance they had paid ₹1,64,000/-.  But the OPs could not provide them the desired agreement for sale despite their repeated requests.  The complainants then found that the proposed project had not been started yet whereas the OPs assured them that the project would be ready within January, 2022. After some months, when the desired agreement was not provided and even the OPs claimed a higher price for the flat, ₹3,500/- per sq. ft. instead of ₹2,300/- per sq. ft., they then wanted to cancel their booking.  After mutual agreement the OPs assured them to refund the payment and a self-declaration was made by the OP-2 on 28/08/2022, which was notarised on 13/12/2022, declaring that he would repay the total amount within 31/12/2022.  But the OP-2 had not paid any amount till April, 2023.  Finding no other way to get back their booking amount they filed this instant complaint before this Commission praying to direct the OPs: (1) to refund the entire amount of ₹1,64,000/- paid by them,  (2) to pay ₹10,00,000/- as compensation for their mental harassment caused by the OPs, (3) litigation cost of  ₹50,000/-,  (4) 18% interest from the date of first payment and any other order(s) as this Commission may deem fit and proper.

              Complainants filed copies:  (i) the Registered Power of Attorney executed between the landowners and the OP-2, registered on 22/01/2021,  (ii) four Money Receipts issued by the OP-1 acknowledging payments on different dates,  (iii) Declaration made by the OP-2 on 28/08/2022 which was notarised on 13/09/2022 and (iv) Original copy of the Power of Attorney given by the Complainant No.–1 to the Complainant No.–2  as annexure to the complaint petition.

            Notices were served upon the OPs, after admission, to appear and contest the case by filing their written version.  OPs appeared through their Ld. Lawyer and prayed time for filing their written version, but later they could not file their written version within the stipulated time period for which this case proceeded ex parte against them. Then the complainant No.–2 filed their Evidence on Affidavit.  Ultimately argument was heard in details and the complainants filed their Brief Notes on Argument. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OPs are deficient in rendering proper service to the complainants for which the complainants are entitled to get relief(s) as prayed for.

DECISION WITH REASONS

            The brief facts of this case as emerged from the complaint petition and the annexed documents are that the complainants had paid some money intending to purchase a 1000 sq ft flat in the second floor of the proposed building at the premises at 19/1, Fakir Chand Ghosh Lane, P. S. – Bantra, Howrah–711 101, for a settled consideration of ₹23,00,000/- based on verbal assurance of the OPs and relying upon the registered power of attorney only.  Complainants had paid ₹1,64,000/- on different dates starting from 09/10/2021 up to 30/01/2022.   As per the statement, the OPs assured that the project would be completed within January, 2022, but that had not happened.  Moreover, the OPs could not provide them the desired agreement for sale for the subject flat.  Rather the OPs demanded enhanced price of the flat which was so high that the complainants were no longer interested to purchase their desired flat and they wished to cancel the booking. After mutual agreement it was decided that the OPs would refund the entire amount paid be them within December, 2022 and to this effect the OP-2 made a Self-declaration on 28/08/2022 assuring the Complainant No.–2 that the entire amount of ₹1,64,000/- would be refunded without any interest within 31/12/2022.  The OPs failed to act according to their promised assurance for which this case has arisen.

            Records show that a registered power of attorney was executed on 22/01/2021 between 11 (eleven) land owners as Executants and the OP-2 as the Attorney.  From this Power of Attorney we found that the attorney holder was going to develop the premises of the land owners lying and situated at 19/1, Fakir Chand Ghosh Lane, Howrah–711101 by constructing a multi-storied building in which the complainants intended to purchase their desired flat.  From this document we find nothing about the structure of the proposed building.  We see that the registered Power of Attorney starts with the sentence: “After Registration of Development Agreement.”  [Emphasis provided.].  So, there must be a development agreement for which the complainants should have to emphasize, before making any advance payment, to be provided to them by the OPs.  Relying upon the verbal assurance and the power of attorney complainants have paid some money thus putting their feet in wrong shoes provided by the OPs. The OPs had not provided the complainants any sale agreement, rather demanded higher rate for the flat which proves that the OPs have taken an unfair trade practice as is defined under the Act. As there is no written document regarding the purchase except the money receipt and the self-declaration and the OPs had not contested this case, so we have no alternative views or statement against the claim of the complainants.

            From the declaration made by the OP-2 on 28/08/2022 which was issued to the complainant no.–2 we find that the OP-2 have acknowledged for receiving of ₹1,64,000/- on different dates from the complainants to provide them the second floor 1000 sq. ft. flat.  In point number 3 in this self-declaration it is written therein as:

            “3.       That thereafter, due to some difference in various matters regarding the       instant flat it has been mutually agreed and resolved between I and Agniv Nandi     that he shall not proceed any further with the said flat.”  [Emphasis provided.]

            In point number 4 of this declaration the following is written:

            “4.       That I state that I shall refund to Agniv Nandi full advanced amount of         ₹1,64,000/- (One lakh Sixty Four Thousand) only without any interest within           31/12/2022.”  [Emphasis provided.]

            This declaration has been made by the OP-2 by swearing affidavit and this was notarised on 13/09/2022 which the complainant inadvertently written as 13/12/2022.

            So, the statement of the complaint and the annexed documents state that the complainants had booked a flat in the second floor at the premises at 19/1, Fakir Chand Ghosh Lane, Howrah–711101 and paid 19/1, and paid ₹1,64,000/- depending on verbal assurance of the OPs. Later, it was mutually settled that the complainants would not proceed further with their intending purchase and the OPs would refund the booking amount without interest within 31/12/2022.  OPs failed to refund any amount, so there is a deficiency in service as is defined under the Consumer Protection Act, 2019 occurred from the part of the OPs for which they are liable to pay compensation. The OPs appeared through their Ld. Lawyer but ultimately did not contest the case which tells us that they were not interested in resolving the dispute.  Complainants, who are consumers as is defined under Section 2(7) of the Consumer Protection Act, 2019 of the OPs and the OPs are the service provider as is defined under the Act.  As the OPs are deficient in providing service to the consumers/complainants, so the complainants are entitled to get relief under the Act.  Complainants prayed for refund of their advance amount paid to the OPs together with a compensation of ₹10,00,000/- and an interest at the rate of 18% on the paid amount.  But it is a settled principle that when compensation is awarded in the form of interest then awarding both compensation and interest will be unjustified.  Hence we are of considered view that the OPs should refund ₹1,64,000/- together with interest at the rate of 9% per annum on the paid amount from the respective payment dates would by enough the complainants are entitled to get.  The complainants are also entitled to get ₹5,000/- as litigation cost from the OPs.

            Hence, it is

ORDERED

            That the complaint Case No. CC/114/2023 be and the same is allowed ex parte against the Opposite Parties and with cost.

            The Opposite Parties are directed to refund ₹1,64,000/- to the Complainant No.–2 together with a simple interest at the rate of 9% per annum from the dates of respective payments up to the date of this order.  The Opposite Parties are also directed to pay ₹5,000/- to the Complainant No.–2  as litigation cost.  These payments should made by the Opposite Parties within 45 days from the date of receiving this order failing which the entire sum shall carry 9% interest till full and final realisation.

            The Complainant No.–2 is directed to disburse the payable amount due to the Complainant No.–1 immediately after receiving the above-mentioned amounts from the Opposite Parties.

            Let a copy of this order be issued, on demand, to the parties of both sides free of cost. 

Dictated and corrected by me

            Member.